IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION)

Transcription

1 1 IN THE HIGH COURT OF SOUTH AFRICA (BOPHUTHATSWANA PROVINCIAL DIVISION) In the matter between: CASE NUMBER: 997/2008 K E MONYE APPLICANT and S SMIT RESPONDENT JUDGMENT. [1] On 29 th April 2008 the Applicant in this matter filed an urgent application under case number 997/2008 in terms of which he sought an order (inter alia) as follows: a)that the Respondent restore possession of certain immovable property (a house) in Lichtenburg to the Applicant with immediate effect. (For the sake convenience I refer to this application as the first application ). b)that the Respondent pays the costs of this application.

2 2 [2] According to an affidavit, deposed to by the Applicant s attorney the Applicant's founding papers were served by the Applicant's attorney at 20H00 on 29 TH April 2008 (the day before the date on which the first application was to be heard) at the property in question by the delivery of a copy thereof to an employee of the Respondent and in the temporary absence of the Respondent. The employee refused to accept service and in view of the said refusal the attorney left a copy of the documents on the floor of the house in the presence of the employee. [3] The application came before Mogoeng, JP in this division on Wednesday 30 th April There was no appearance on behalf of the Respondent and an order was granted in the following terms: The Respondent together with all other people who occupy the property through her is ordered to restore possession of Portion 1 of Erf 450 Lichtenburg Registration Division I.P North West Province to the Applicant with immediate effect. That a rule nisi is hereby issued returnable on Thursday the 20 th May 2008 at 10H00 calling the Respondent to show cause why the orders set out in paragraph (i) and (ii) of the notice of motion should not be made final. [4] Having obtained the said order, the Applicant's attorney took the

3 3 order to the responsible sheriff in Lichtenburg and requested the sheriff to serve and execute the order. The sheriff duly served the order on the Respondent at the said property but the sheriff was not prepared to evict the Respondent when it became clear that the Respondent was not willing to vacate the property voluntarily. [5] The Applicant then filed a further application under case number 1049/08 (herein after referred to as the second application). In the latter application the Applicant sought an order inter alia as follows: That the amended draft order on 30 th April 2008 under case no: 997/2008 adds the following sentence after the words: with immediate effect on the first order: members of the South African Police Services are empowered and authorized to execute this order should the Sheriff Lichtenburg for any reason be unable or unwilling, to execute it.' That the First Respondent and those occupying portion 1 of Erf 450 Lichtenburg Registration Division I.P. North West Province pay the costs of this application. [6] The Sheriff was the Second Respondent in the latter application but a costs order against the Second Respondent in that application was sought only in the event of that Respondent opposing the application. The second Respondent filed an affidavit but otherwise abided the decision of the court. For the sake of convenience I therefore refer herein to the Respondent in the first

4 application who is the First Respondent in the second application merely as the Respondent 4 [7] The second application was set down for hearing on Friday 9 th May 2008 but was on that date postponed to 12 May 2008 and on the said Friday (9 th May 2008) the Respondent in the main application gave notice of her intention to anticipate the return date of the rule nisi in the main application to Monday, 12 May 2008 on which date both applications came before me for consideration. [8] The salient facts of the applications can be summarised as follows: c)on 30 th January 2008 the Applicant bought the property referred to above (herein referred to as the property) from the curator in an insolvent estate. A written agreement was signed by the parties to that agreement on 6 th February d)in terms of Clause 2 of the written agreement of sale (the sale agreement) the Applicant had to pay 10% of the purchase price immediately and the balance was to be paid pari passu with registration of the property into the name of the Applicant. The Applicant was to provide a bank guarantee acceptable to the seller for the said balance within 30 days from the date of confirmation of the sale.

5 5 e)in terms of Clause 6 of the sale agreement the seller became entitled to cancel that agreement without notice to the purchaser in the event of the latter failing to comply with any of the conditions of the sale agreement. f)subsequent to the conclusion of the sale agreement and on or about 7 th February 2008 the seller caused the keys in respect of the property to be handed to the Applicant (the purchaser) and permitted the Applicant to occupy the house pending the finalisation of the transfer of the property. g)however, at some stage thereafter the seller formed the opinion that the Applicant failed to provide the necessary guarantee for the balance of the purchase price, cancelled the sale agreement and sold the property to the Respondent. (the second sale agreement). h)the seller then also requested the applicant to return the keys to the seller. The applicant was clearly of the view that the seller was not entitled to cancel the first sale and the applicant did not return the keys. i)pursuant to the second sale, the seller permitted the Respondent to enter the house and to occupy same pending the finalisation of

6 6 transfer in terms of the second sale. However, the house was locked and the keys, as stated above were in possession of the Applicant. The seller then authorised the Respondent to enlist the services of a locksmith to open the building for the Respondent and in so doing permitted the Respondent to enter the house. j)pursuant to the foregoing facts the Respondent with her children and a nanny started to occupy the house and the Respondent also started to effect renovations to the house. k)on or about 11 th April 2008 the Applicant observed that the Respondent and her family were in the house. He, through his attorney, in writing requested the Respondent to vacate the house but such attempt was without success consequently the main application was filed. [9] Advocate Lever SC who appeared for the Respondent in both applications raised several points on the strength of which he argued that the applications should be dismissed. In view of what is said herein below I do not deal with all his points. However, two main issues raised by him in respect of the first application call for consideration namely: a)the Respondent did not commit an unlawful act of spoliation.

7 7 b)the Applicant failed to comply with the provisions of the Prevention of Illegal Eviction from and Unlawful Occupation of Land Act, No. 19 OF 1998 (herein referred to as PIE ). I now intend to deal with these two issues. [10] SPOLIATION. I understand Mr. Lever s argument on this aspect to be as follows. The first sale agreement was duly cancelled and therefor the seller was entitled to sell the property to a new buyer and to permit the second buyer to occupy the property. The Respondent obtained the right to occupy the property from the seller. She was therefore entitled to occupy the property and cannot be said to have committed an act of spoliation. Consequently, and since the relief sought by the Applicant in the first application is essentially an application for eviction, that application falls to be dismissed. With due respect to counsel, I do not agree. In my view a seller of a house who has (before transfer of the property into the name of the purchaser) allowed the purchaser to occupy the building which is the subject of the sale agreement, cannot evict the purchaser from the property without the latter s consent in the event of the sale agreement being cancelled. In such event the seller is bound to approach an appropriate court of law for an order that the

8 8 purchaser be evicted from the property. ( ERASMUS v DORSYD FARMS (PTY) LTD 1982 (2) SA 107 (T).) Consequently the seller in the present case could not himself have taken back occupation without the consent of the purchaser (the Applicant) or without an appropriate court order. The seller could therefore not have transferred such right to the Respondent and the occupation by the Respondent in the circumstances constitutes an unlawful spoliation of the right of occupation that had been given to the Applicant by the seller. [11] THE PIE LEGISLATION. Mr. Monare who appeared for the Applicant in both applications strongly argued that the provisions of Pie are not applicable to the present application since the Respondent has not established a home as contemplated in Pie. He further relied on the judgment in ABSA Bank Ltd. v Amod 1999(2) ALL SA 2 (W) 423. In the ABSA case Schwartzman J found that the PIE legislation was not intended to regulate the relationship between parties arising out of common law contracts of sale and Mr. Monare argued that that decision has to be applied to the facts of the present case. The ABSA decision was criticised and was not followed by the Supreme Court of Appeal in NDLOVU v NGCOBO; BEKKER AND ANOTHER v JIKA 2003 (1) SA 113 (SCA) in which matter Harms JA is reported to

9 9 have said (paragraph 16 of the judgment): There is clearly a substantial class of persons whose vulnerability may well have been a concern of Parliament, especially if the intention was to invert PISA. It would appear that Schwartzman J overlooked the poor, who will always be with us, and that he failed to remind himself of the fact that the Constitution enjoins courts, when interpreting any legislation, to promote the spirit, purport and objects of the Bill of Rights, in this case s 26(3). In paragraph [11] of the latter judgment the Learned Judge of Appeal (then dealing with the definition of unlawful occupier in PIE) said: Since the factors discussed are essentially neutral, one is left with the ordinary meaning of the definition which means that (textually) PIE applies to all unlawful occupiers, irrespective of whether their possession was at an earlier stage lawful. I am bound by the rulings of the Supreme court of Appeal and therefore have to follow the decision in the latter case. In CITY OF CAPE TOWN v RUDOLPH AND OTHERS 2004 (5) SA 39 (C) AT 61c the court (Selikowitz J) found that a spoliation order cannot override the provisions of PIE and the Learned Judge remarked inter alia as follows (at 61 D of the report): As in the case of other common law remedies which effectively evict an unlawful occupier', I find that the mandament van spolie is not available

10 10 where PIE applies. In my respectful view the finding that the common law remedy of mandament van spolie is not available where PIE applies needs qualification. I believe that the mandament as a remedy is still available but that the implementation thereof can only be effected with due regard to the provisions of PIE. I find fortification for this approach in the provisions of section 5 of PIE which specifically provides for urgent matters and which can therefore be used in matters such as the present first application. It therefore follows that it was a peremptory requirement that the Applicant should have complied with the provisions of PIE before he could succeed in the first application. It is common cause that the Applicant did not comply with PIE. Consequently and by virtue of the failure of the Applicant to so comply with PIE, the first application cannot succeed. [12] It is beyond dispute that in the event of the first application not being successful, the second application cannot succeed either. I was invited to make a special costs order. In my view the facts do not justify such an order. Consequently I make the following order. [13] THE ORDER. Both applications are dismissed with costs. J.H.F. PISTOR. ACTING JUDGE OF THE HIGH COURT

11 11 APPEARANCES: Date of hearing : 13 May 2008 Date of judgment : 15 May 2008 For the Applicant : Mr S E Monare For the Respondent : Adv H Lever SC